What is Property? Part 36

M. Laboulaye, the laureate of the Inst.i.tute, begins his "History of Property" with these words:--

"While the law of contract, which regulates only the mutual interests of men, has not varied for centuries (except in certain forms which relate more to the proof than to the character of the obligation), the civil law of property, which regulates the mutual relations of citizens, has undergone several radical changes, and has kept pace in its variations with all the vicissitudes of society. The law of contract, which holds essentially to those principles of eternal justice which are engraven upon the depths of the human heart, is the immutable element of jurisprudence, and, in a certain sense, its philosophy. Property, on the contrary, is the variable element of jurisprudence, its history, its policy."

Marvellous! There is in law, and consequently in politics, something variable and something invariable. The invariable element is obligation, the bond of justice, duty; the variable element is property,--that is, the external form of law, the subject-matter of the contract. Whence it follows that the law can modify, change, reform, and judge property.

Reconcile that, if you can, with the idea of an eternal, absolute, permanent, and indefectible right.

However, M. Laboulaye is in perfect accord with himself when he adds, "Possession of the soil rests solely upon force until society takes it in hand, and espouses the cause of the possessor;" [62] and, a little farther, "The right of property is not natural, but social. The laws not only protect property: they give it birth," &c. Now, that which the law has made the law can unmake; especially since, according to M. Laboulaye,--an avowed partisan of the historical or pantheistic school,--the law is not absolute, is not an idea, but a form.

But why is it that property is variable, and, unlike obligation, incapable of definition and settlement? Before affirming, somewhat boldly without doubt, that in right there are no absolute principles (the most dangerous, most immoral, most tyrannical--in a word, most anti-social--a.s.sertion imaginable), it was proper that the right of property should be subjected to a thorough examination, in order to put in evidence its variable, arbitrary, and contingent elements, and those which are eternal, legitimate, and absolute; then, this operation performed, it became easy to account for the laws, and to correct all the codes.

Now, this examination of property I claim to have made, and in the fullest detail; but, either from the public's lack of interest in an unrecommended and unattractive pamphlet, or--which is more probable--from the weakness of exposition and want of genius which characterize the work, the First Memoir on Property pa.s.sed unnoticed; scarcely would a few communists, having turned its leaves, deign to brand it with their disapprobation. You alone, sir, in spite of the disfavor which I showed for your economical predecessors in too severe a criticism of them,--you alone have judged me justly; and although I cannot accept, at least literally, your first judgment, yet it is to you alone that I appeal from a decision too equivocal to be regarded as final.

It not being my intention to enter at present into a discussion of principles, I shall content myself with estimating, from the point of view of this simple and intelligible absolute, the theories of property which our generation has produced.

The most exact idea of property is given us by the Roman law, faithfully followed in this particular by the ancient legists. It is the absolute, exclusive, autocratic domain of a man over a thing,--a domain which begins by USUCAPTION, is maintained by POSSESSION, and finally, by the aid of PRESCRIPTION, finds its sanction in the civil law; a domain which so identifies the man with the thing, that the proprietor can say, "He who uses my field, virtually compels me to labor for him; therefore he owes me compensation."

I pa.s.s in silence the secondary modes by which property can be acquired,--_tradition, sale, exchange, inheritance_, &c.,--which have nothing in common with the origin of property.

Accordingly, Pothier said THE DOMAIN OF PROPERTY, and not simply PROPERTY. And the most learned writers on jurisprudence--in imitation of the Roman praetor who recognized a RIGHT OF PROPERTY and a RIGHT OF POSSESSION--have carefully distinguished between the DOMAIN and the right of USUFRUCT, USE, and HABITATION, which, reduced to its natural limits, is the very expression of justice; and which is, in my opinion, to supplant domanial property, and finally form the basis of all jurisprudence.

But, sir, admire the clumsiness of systems, or rather the fatality of logic! While the Roman law and all the savants inspired by it teach that property in its origin is the right of first occupancy sanctioned by law, the modern legists, dissatisfied with this brutal definition, claim that property is based upon LABOR. Immediately they infer that he who no longer labors, but makes another labor in his stead, loses his right to the earnings of the latter. It is by virtue of this principle that the serfs of the middle ages claimed a legal right to property, and consequently to the enjoyment of political rights; that the clergy were despoiled in '89 of their immense estates, and were granted a pension in exchange; that at the restoration the liberal deputies opposed the indemnity of one billion francs. "The nation," said they, "has acquired by twenty-five years of labor and possession the property which the emigrants forfeited by abandonment and long idleness: why should the n.o.bles be treated with more favor than the priests?" [63]

This position is quite in harmony with my principles, and I heartily applaud the indignation of M. Lerminier; but I do not know that a proprietor was ever deprived of his property because UNWORTHY; and as reasonable, social, and even useful as the thing may seem, it is quite contrary to the uses and customs of property.

All usurpations, not born of war, have been caused and supported by labor. All modern history proves this, from the end of the Roman empire down to the present day. And as if to give a sort of legal sanction to these usurpations, the doctrine of labor, subversive of property, is professed at great length in the Roman law under the name of PRESCRIPTION.

The man who cultivates, it has been said, makes the land his own; consequently, no more property. This was clearly seen by the old jurists, who have not failed to denounce this novelty; while on the other hand the young school hoots at the absurdity of the first-occupant theory. Others have presented themselves, pretending to reconcile the two opinions by uniting them. They have failed, like all the _juste-milieux_ of the world, and are laughed at for their eclecticism.

At present, the alarm is in the camp of the old doctrine; from all sides pour IN DEFENCES OF PROPERTY, STUDIES REGARDING PROPERTY, THEORIES OF PROPERTY, each one of which, giving the lie to the rest, inflicts a fresh wound upon property.

Consider, indeed, the inextricable embarra.s.sments, the contradictions, the absurdities, the incredible nonsense, in which the bold defenders of property so lightly involve themselves. I choose the eclectics, because, those killed, the others cannot survive.

M. Troplong, jurist, pa.s.ses for a philosopher in the eyes of the editors of "Le Droit." I tell the gentlemen of "Le Droit" that, in the judgment of philosophers, M. Troplong is only an advocate; and I prove my a.s.sertion.

M. Troplong is a defender of progress. "The words of the code," says he, "are fruitful sap with which the cla.s.sic works of the eighteenth century overflow. To wish to suppress them... is to violate the law of progress, and to forget that a science which moves is a science which grows." [64]

Now, the only mutable and progressive portion of law, as we have already seen, is that which concerns property. If, then, you ask what reforms are to be introduced into the right of property? M. Troplong makes no reply; what progress is to be hoped for? no reply; what is to be the destiny of property in case of universal a.s.sociation? no reply; what is the absolute and what the contingent, what the true and what the false, in property? no reply. M. Troplong favors quiescence and _in statu quo_ in regard to property. What could be more unphilosophical in a progressive philosopher?

Nevertheless, M. Troplong has thought about these things. "There are,"

he says, "many weak points and antiquated ideas in the doctrines of modern authors concerning property: witness the works of MM. Toullier and Duranton." The doctrine of M. Troplong promises, then, strong points, advanced and progressive ideas. Let us see; let us examine:--

"Man, placed in the presence of matter, is conscious of a power over it, which has been given to him to satisfy the needs of his being. King of inanimate or unintelligent nature, he feels that he has a right to modify it, govern it, and fit it for his use. There it is, the subject of property, which is legitimate only when exercised over things, never when over persons."

M. Troplong is so little of a philosopher, that he does not even know the import of the philosophical terms which he makes a show of using. He says of matter that it is the SUBJECT of property; he should have said the OBJECT. M. Troplong uses the language of the anatomists, who apply the term SUBJECT to the human matter used in their experiments.

This error of our author is repeated farther on: "Liberty, which overcomes matter, the subject of property, &c." The SUBJECT of property is man; its OBJECT is matter. But even this is but a slight mortification; directly we shall have some crucifixions.

Thus, according to the pa.s.sage just quoted, it is in the conscience and personality of man that the principle of property must be sought. Is there any thing new in this doctrine? Apparently it never has occurred to those who, since the days of Cicero and Aristotle, and earlier, have maintained that THINGS BELONG TO THE FIRST OCCUPANT, that occupation may be exercised by beings devoid of conscience and personality. The human personality, though it may be the principle or the subject of property, as matter is the object, is not the CONDITION. Now, it is this condition which we most need to know. So far, M. Troplong tells us no more than his masters, and the figures with which he adorns his style add nothing to the old idea.

Property, then, implies three terms: The subject, the object, and the condition. There is no difficulty in regard to the first two terms. As to the third, the condition of property down to this day, for the Greek as for the Barbarian, has been that of first occupancy. What now would you have it, progressive doctor?

"When man lays hands for the first time upon an object without a master, he performs an act which, among individuals, is of the greatest importance. The thing thus seized and occupied partic.i.p.ates, so to speak, in the personality of him who holds it. It becomes sacred, like himself. It is impossible to take it without doing violence to his liberty, or to remove it without rashly invading his person. Diogenes did but express this truth of intuition, when he said: 'Stand out of my light!'"

Very good! but would the prince of cynics, the very personal and very haughty Diogenes, have had the right to charge another cynic, as rent for this same place in the suns.h.i.+ne, a bone for twenty-four hours of possession? It is that which const.i.tutes the proprietor; it is that which you fail to justify. In reasoning from the human personality and individuality to the right of property, you unconsciously construct a syllogism in which the conclusion includes more than the premises, contrary to the rules laid down by Aristotle. The individuality of the human person proves INDIVIDUAL POSSESSION, originally called _proprietas_, in opposition to collective possession, _communio_.

It gives birth to the distinction between THINE and MINE, true signs of equality, not, by any means, of subordination. "From equivocation to equivocation," says M. Michelet, [65] "property would crawl to the end of the world; man could not limit it, were not he himself its limit.

Where they clash, there will be its frontier." In short, individuality of being destroys the hypothesis of communism, but it does not for that reason give birth to domain,--that domain by virtue of which the holder of a thing exercises over the person who takes his place a right of prestation and suzerainty, that has always been identified with property itself.

Further, that he whose legitimately acquired possession injures n.o.body cannot be nonsuited without flagrant injustice, is a truth, not of INTUITION, as M. Troplong says, but of INWARD SENSATION, [66] which has nothing to do with property.

M. Troplong admits, then, occupancy as a condition of property. In that, he is in accord with the Roman law, in accord with MM. Toullier and Duranton; but in his opinion this condition is not the only one, and it is in this particular that his doctrine goes beyond theirs.

"But, however exclusive the right arising from sole occupancy, does it not become still more so, when man has moulded matter by his labor; when he has deposited in it a portion of himself, re-creating it by his industry, and setting upon it the seal of his intelligence and activity?

Of all conquests, that is the most legitimate, for it is the price of labor.

"He who should deprive a man of the thing thus remodelled, thus humanized, would invade the man himself, and would inflict the deepest wounds upon his liberty."

I pa.s.s over the very beautiful explanations in which M. Troplong, discussing labor and industry, displays the whole wealth of his eloquence. M. Troplong is not only a philosopher, he is an orator, an artist. HE ABOUNDS WITH APPEALS TO THE CONSCIENCE AND THE Pa.s.sIONS. I might make sad work of his rhetoric, should I undertake to dissect it; but I confine myself for the present to his philosophy.

If M. Troplong had only known how to think and reflect, before abandoning the original fact of occupancy and plunging into the theory of labor, he would have asked himself: "What is it to occupy?" And he would have discovered that OCCUPANCY is only a generic term by which all modes of possession are expressed,--seizure, station, immanence, habitation, cultivation, use, consumption, &c.; that labor, consequently, is but one of a thousand forms of occupancy. He would have understood, finally, that the right of possession which is born of labor is governed by the same general laws as that which results from the simple seizure of things. What kind of a legist is he who declaims when he ought to reason, who continually mistakes his metaphors for legal axioms, and who does not so much as know how to obtain a universal by induction, and form a category?

If labor is identical with occupancy, the only benefit which it secures to the laborer is the right of individual possession of the object of his labor; if it differs from occupancy, it gives birth to a right equal only to itself,--that is, a right which begins, continues, and ends, with the labor of the occupant. It is for this reason, in the words of the law, that one cannot acquire a just t.i.tle to a thing by labor alone.

He must also hold it for a year and a day, in order to be regarded as its possessor; and possess it twenty or thirty years, in order to become its proprietor.

These preliminaries established, M. Troplong's whole structure falls of its own weight, and the inferences, which he attempts to draw, vanish.

"Property once acquired by occupation and labor, it naturally preserves itself, not only by the same means, but also by the refusal of the holder to abdicate; for from the very fact that it has risen to the height of a right, it is its nature to perpetuate itself and to last for an indefinite period.... Rights, considered from an ideal point of view, are imperishable and eternal; and time, which affects only the contingent, can no more disturb them than it can injure G.o.d himself."

It is astonis.h.i.+ng that our author, in speaking of the IDEAL, TIME, and ETERNITY, did not work into his sentence the DIVINE WINGS of Plato,--so fas.h.i.+onable to-day in philosophical works.

With the exception of falsehood, I hate nonsense more than any thing else in the world. PROPERTY ONCE ACQUIRED! Good, if it is acquired; but, as it is not acquired, it cannot be preserved. RIGHTS ARE ETERNAL! Yes, in the sight of G.o.d, like the archetypal ideas of the Platonists. But, on the earth, rights exist only in the presence of a subject, an object, and a condition. Take away one of these three things, and rights no longer exist. Thus, individual possession ceases at the death of the subject, upon the destruction of the object, or in case of exchange or abandonment.

Let us admit, however, with M. Troplong, that property is an absolute and eternal right, which cannot be destroyed save by the deed and at the will of the proprietor. What are the consequences which immediately follow from this position?

To show the justice and utility of prescription, M. Troplong supposes the case of a bona fide possessor whom a proprietor, long since forgotten or even unknown, is attempting to eject from his possession.

"At the start, the error of the possessor was excusable but not irreparable. Pursuing its course and growing old by degrees, it has so completely clothed itself in the colors of truth, it has spoken so loudly the language of right, it has involved so many confiding interests, that it fairly may be asked whether it would not cause greater confusion to go back to the reality than to sanction the fictions which it (an error, without doubt) has sown on its way? Well, yes; it must be confessed, without hesitation, that the remedy would prove worse than the disease, and that its application would lead to the most outrageous injustice."